2006 PLP 122 (PLC)

RAHMAT HUSSAIN JAFFERI, J.

This is a revision application under section 48(3) of Industrial Relations Ordinance, 2002 to examine the correctness, legality and propriety of order dated 16-4-2005 passed by the Labour Court No.11 Karachi.

2. An industrial dispute under section 32 (1-A) of I.R.O. 1969 between Hashimi Can Company Ltd. and respondent was referred to Labour Court No.II Karachi. The respondent for the purpose of acceptance of certain demands of the Union filed a Complaint No.1/99 under sections 54 and 55 of I.R.O. 1969 before the said Court. The Labour Court passed an order dated 17-8-2002. A Revision Application No. K-167/01 was filed before the Sindh Labour Appellate Tribunal Karachi under section 38 (3-A) of I.R.O., 1969. The Tribunal called the record and proceedings of the case. The operation of the said order was suspended on 29-9-2001. While the order or stay of the proceedings of the Labour Court was operating when I.R.O., 1969 was repealed with the result that Sindh Labour Appellate Tribunal was abolished. In place of repealed Ordinance new statute in the name of Industrial Relations Ordinance, 2002 was promulgated. Thereafter all the appeals, revisions and other matters pending before the then Sindh Labour Appellate Tribunal were sent to the High Court for proceedings in accordance with law. However the High Court retained the appeals but returned all the revisions applications and other matters which are presently lying in the office of Labour Court No.1 being custodian of the cases of Sindh Labour Appellate Tribunal Karachi. In this background the Labour Court No.II Karachi started the proceedings which were already stayed by the then Sindh Labour Appellate Tribunal at Karachi and passed the impugned order hence the present revisions application.

3. I have heard the parties' Advocates, Mr. Agha Zafir State Counsel who has represented the Advocate-General Sindh, perused the record of this case and law involved in the matter very carefully. Mr. Agha adopted the arguments of the learned Advocate for the applicant.

4. The learned Advocate for the applicant has stated that the revisions applications sent to this Court by Sindh Labour Appellate Tribunal Karachi have been wrongly returned by the nigh Court as they have been saved under section 80 (2)(b) of I.R.O., 2002; that sections 48 (3) of I.R.O. 2002 and section 38 (3-A) of I.R.O., 1969 are same therefore the revision applications are deemed to be pending before this Court, that order of the Honourable Chief Justice sending the R&Ps back to the Labour Court No.1 was an administrative order therefore judicial order is required to be passed in this matter. He has relied upon 2004 PLC 400.

5. On the other hand the learned Advocate for the respondent has argued that under section 80 (2)(d) of I.R.O. 2002 only' appeals were required to be transferred to this Court after the abolition of Sindh Lahore Appellate Tribunal, that there is no provision in the I.R.O., 2002 whereby the revisions applications are required to be transferred to this Court therefore the revisions applications stand lapsed hence the proceedings before the Labour Court are in accordance with law.

6. It is pertinent to point out that after the repeal of I.R.O., 1969 and promulgation of I.R.O. 2002 the appeals, revisions and others cases were sent to this Court for proceedings in accordance with law. The breakup of the matters is as under:-- 1. (i) Appeals pertain to Karachi?????????? 320 (ii) Revisions pertain to Karachi 132 2. (i) Appeals pertain to Hyderabad????? 39 (ii) Revisions pertain to Hyderabad??????? 17 3. (i) Appeals pertain to Sukkur??????????? 7 (ii) Revisions pertain to Sukkur? 4 4. (i) Appeals pertain to Larkana?????????? 2 (ii) Revisions pertain to Larkana??????????? 1

5. Complaints filed with the Labour Appellate Tribunal pertain to Karachi??? 6

7. The office after receiving the said matters submitted a note on the recommendation and suggestions of Mr. Shahid A Bajwa Advocate to the Hon. Chief Justice. The office note and suggestions concerning revision applications are as under:-- "It is further stated that under sections 80 (2) (b) of the I.R.O, 2002, only appeals pending before the Sindh Labour Appellate Tribunal stand transferred but the Tribunal has also sent revisions applications and other cases when under the provisions of I.R.O., 2002, revisions have not been ordered to be transferred to ,this Court, therefore, in law revisions stand lapsed. It is proposed to seek appropriate order from the concerned bench of the commission.

6. Revisions applications which have been transferred to this Court without having any order or provisions in the I.R.O, 2002 the same may be returned back to the custodian of the record of Sindh Labour Appellate Tribunal i.e. Presiding Officer, Sindh Labour Court No.1 Karachi being custodian of cases of Sindh Labour Appellate Tribunal Karachi."

8. The Hon. Chief Justice accepted the above proposal through an administrative order on 28-4-2005. In pursuance of the said order all the revisions applications were sent to Presiding Officer, Sindh Labour Court No.1 Karachi. Now the question arises as to whether the revisions applications have been rightly returned or they are deemed to be pending before this Court.

9. Admittedly there is no provision in I.R.O., 2002 about the transfer of revisions applications from Sindh Labour Appellate Tribunal to High Court. The section 80 (2)(d) of I.R.O., 2002 only speaks of transfer of appeals from the Sindh Labour Appellate Tribunal to High Court. In this background the learned Advocate for the applicant has stated that the proceedings of revisions applications have been saved under section 80 (2)(b) of I.R.O., 2002 whereas office note of this Court and the Advocate for the respondents has argued that after the abolition of Sindh Labour Appellate Tribunal the revisions applications stand lapsed. In order to arrive at the proper conclusion it will be profitable to reproduce section 80 (2)(b) of I.R.O., 2002 that reads as under:-- "

80. Repeal and savings [1]

(2) Notwithstanding the repeal of Industrial Relations Ordinance, 1969 (XXIII of 1969), hereinafter to be called the repealed of Ordinance, and without prejudice to the provisions of sections 6 and 24 of General Clauses Act, 1897 (X of 1897)- (a)???????

(b) anything done, the rules made, notification or order issued, officer appointed, Court constituted, notices given, proceedings commenced or other actions taken under the repealed Ordinance shall be deemed to have been done, made, issued, appointed, constituted, given, commenced or taken, as the case may be, under the corresponding provisions of this Ordinance; and"

10. From the above provision of law it is clear firstly that if under the repealed Ordinance I.R.O., 1969 anything done, rules made, notifications or orders issued, officers appointed, Court constituted, notices given, proceedings commenced and other actions taken then they are saved. Secondly above acts done, rules made, notifications or orders issued, officers appointed, Court constituted, notices given, proceedings commenced or taken are deemed to have been done under the corresponding provisions of I.R.O., 2002.

11. Thus the proceedings commenced and Court constituted under I.R.O., 1969 have been saved and they are deemed to have been commenced and constituted under the corresponding provisions of I.R.O., 2002. It will be noticed that Sindh Labour Appellate Tribunal was created under section 38 of I.R.O., 1969 but the constitution of Labour Appellate Tribunal has not been saved under the above provisions of law. In place of Tribunal the appeals are required to be filed before the High Court under section 48 (1) and High Court has been given revisional powers to be taken on its own motion under section 48 (3) of I.R.O., 2002. As the constitution of Labour Appellate Tribunal has not been saved under I.R.O., 2002 therefore the said Tribunal stands abolished. Consequently appointment to the Chairman Labour Appellate Tribunal also stands terminated. A Reference is invited to Municipal Board, Kanpur v. Biharilal, A.I.R. 1960 All. 546 [F.B.]. Thus there is neither Labour Appellate Tribunal nor its Chairman. As such there is no such Tribunal/office where the cases can be kept or remained pending.

12. It is pertinent to point out that Labour Appellate Tribunal had revisional powers under Section 38 (3-A), I.R.O., 1969. The revisions applications were pending under the said provisions of law. Similar provisions are available under Section 48 (3) of I.R.O. 2002 under which High Court has been given revisional powers. Under section 80 (2) (b) of I.R.O., 2002 if proceedings are commenced under the repealed Ordinance then the same are deemed to have been commenced under I.R.O, 2002. The revisions applications were commenced under section 38 (3-A) of I.R.O., 1969 therefore by virtue of section 80 (2) (b) of I.R.O., 2002. they are deemed to have been commenced under section 48 (3) of I.R.O., 2002. Once the proceedings have commenced then unless they are terminated or lapsed, they remain pending before the forum where they commenced or deem to have commenced. As the pending proceedings before the Labour Appellate Tribunal are deemed to have commenced under the relevant provision i.e. section 48 (3) of I.R.O., 2002 therefore by virtue of section 80 (2)(b) of I.R.O. 2002 they stand commenced before the High Court as such they are deemed to be A pending before the High Court.

13. Next question arises as to whether the said proceedings Lapsed or terminated in the absence of provision in the I.R.O., 2002 about transferring the revisions applications pending before the Sindh Labour Appellate Tribunal. It will be noticed that revisional powers are supervisory powers of superior authority over the inferior authority and officers. Reference is invited to Riasat Ali v. Mohammad Jafar Khan, 1991 SCMR

496. Under the repealed Ordinance and New Ordinance the parties have not been provided any right to file revision application but suo motu powers were/are given to the Labour Appellate Tribunal and High Court respectively. Such powers can be exercised on information received from any source including the parties. A Reference is invited to a case of Norwich Union F.I.S. Ltd. v. Mohammad Javed Iqbal, 1986 SCMR 1071. After receiving such information if the Court finds that proceedings are required to be initiated and admitted the proceedings, then the proceedings are between the higher forum and lower forum in which the parties have nothing to do in the matter except to point out irregularity, propriety and illegality in the proceedings or order of the lower forum. As such no vested rights of the parties are involved in A initiating such proceedings therefore the question of extinguishing the said rights of the parties in such proceedings does not arise.

14. It will be noticed that in several other statutes when the statutes are repealed no provision has been made for transferring the cases pending before the Court under repealed enactments to the Courts created under new enactments. Nevertheless the new Courts created under new enactments assume the jurisdiction of the said cases and try the same in accordance with law. For example when Banking Tribunal Ordinance, 1984 was repealed through Banking Companies (Recovery of loans, Advances, Credits and Finances) Act, 1997 (XV of 1997) no provision was made for transferring the cases pending before the Banking Tribunal created under the repealed Ordinance to the Courts created under the Act XV, 1997. It will be further noticed that through the Act XV of 1997 the Banking Companies (Recovery of loans, Advances, Credits and Finances) Ordinance, 1997 (XXV of 1997) was also repealed. However under Section 27 of the Act XV, 1997 all criminal proceedings pending before the special Courts constituted under Ordinance XXV of 1997 was transferred to the newly-created Banking Courts under the Act XV of 1997. But no provision was made for transferring the Banking cases of civil jurisdiction from the Courts of repealed Ordinance XXV of 1997 to the Courts created under Act XV of 1997. Banking cases of civil jurisdiction under both the repealed Ordinances were tried by the newly-created Banking Courts created under the Act XV of 1997 by assuming the jurisdiction of said cases. It will be further noticed that Act XV of 1997 was repealed by the Financial Institutions (Recovery of Finances) Ordinance, 2001 but no provision has been made for transferring the cases pending before the Banking Courts of Act, XV of 1997 to the Court created under the new Ordinance of 2001. Nevertheless the Courts created under Ordinance, 2001 assumed the jurisdiction of the cases pending before the Banking Courts created under Act XV of 1997 and started trying the cases. The said cases are still being tried by the newly-created Courts of Ordinance 2001.

15. From the above examples it is clear that it is not always the scheme of the Legislature to make a specific provision for transferring all the matters pending before the Courts created under the repealed enactments to the newly-created Courts under new law but the intention of legislature is to be examined in the light of newly-created enactment. It appears that the intention of the Legislature was not that the revisions applications pending before Sindh Labour Appellate Tribunal of the repealed Ordinance I.R.O. 1969 should lapse, because it was in the knowledge of the Legislature that I.R.O. 1969 was not a temporary statute.

16. Great emphasis has been made that revisions applications have lapsed therefore it is essential to examine the definition of "lapse". The word "lapse" has been defined in the American Heritage Talking Dictionary in the following manner:- "

4. The termination of a right or privilege through disuse, neglect, or death"

17. In the present case I have already observed that the parties had no right to file a revision application under I.R.O., 1969. Hence there was no termination of any right or privilege of the parties under the repealed I.R.O, 1969. However the proceedings were between the Labour Appellate Tribunal and the Labour Court. "Harms" defines the word 'lapse' in the following manner as reported in Law Terms and Phrases By Sardar Muhammad Iqbal Khan Mokal:

"Lapse. Term used in English law. When a person to whom a gift is made by will, dies before the testator, the gift lapses, i.e. fails to take effect. But where a gift is to a child or other issue of testator, and the said issue, or the child has died leaving issue, the latter take the ancestor's legacy or devise. The word "lapse" also applies to the failure of the pattern of a church living to appoint on a vacancy. At the end of six months the rights the presentation lapses and falls to the bishop. The word appears also in connection with the British Rule in India, as the equivalent of escheat. If the ruler of native territory leaves no heir it has been held that this territory lapses to the Crown; and a number of native States have been acquired under this law. Childless Princes sought to avoid the lapse by adopting an heir, but the British authorities frequently refuse to recognize these adoptions. Lords Dalhousie is known for the extent to which he has made use of this doctrine of lapsed."

18. If the above rule is applied then after the abolition of Labour Appellate Tribunal another forum has been provided in the shape of High Court therefore there is no vacuum created on the abolition of Labour Appellate Tribunal. Thus, the proceedings pending before the Labour Appellate Tribunal would not lapse.

19. It is pertinent to point out that proceedings are lapsed or automatically terminated in the case of expiry of temporary statutes. A temporary statute is a statute which expires or lapses by afflux of time or on fulfillment of certain condition. In such statutes general rule is that in the absence of special provisions to the contrary, the proceedings which are taken under it would ipso facto terminate on the expiry of the statute. A Reference is invited to a case of Mohammad Arif v. State, 1993 SCMR 1589. I.R.O., 1969 was not a temporary statute. It did not expire or lapse by afflux of time but it was repealed through another permanent E statute I.R.O., 2002. As such the proceedings which were taken under I.R.O. 1969 would neither lapse nor ipso facto terminate but would deemed to be pending before the High Court. The above question is answered accordingly.

20. In the present case Revision Application No.K-167/2001 pending before the Labour Appellate Tribunal is deemed to be pending before this Court in which the operation of the impugned order of the revision application was suspended. As the revision application is pending before this Court therefore the said order would continue to operate. Thus the Labour Court was not justified in proceedings with the case and such proceedings are illegal therefore they are set aside.

21. Office is directed to call above mentioned revision application from the concerned Court and place the same before this Court for further proceedings.

22. In the light of what has been discussed above the revision application is allowed in the above terms. H.B.T./M-278/K????????????????????????????????????????????????????????????????????????????????? Revision allowed.